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En Banc Ruling on Michigan’s Proposal 2 Goes to the High Court

Posted in News and Analysis, Supreme Court

This morning, the U.S. Supreme Court accepted certiorari on a case that the Sixth Circuit Appellate Blog has been watching since July 2011: Coalition to Defend Affirmative Action v. Regents of the University of Michigan (6th Cir., Case Nos. 08-1387/1389/1534 & 09-1111).

In Coalition to Defend Affirmative Action, Integration and Immigrant Rights and Fight for Equality by Any Means Necessary v. Regents of the Univ. of Michigan (PDF), a divided panel of the Sixth Circuit struck down a 2006 voter-approved amendment to the Michigan constitution, Proposal 2, which prohibits Michigan’s public colleges and universities from granting “preferential treatment to[] any individual or group on the basis of race, sex, color, ethnicity, or national origin.”  Over a strong dissent by Judge Gibbons, the panel majority, written by Judge Cole, ruled that Proposal 2 ran afoul of U.S. Supreme Court precedent interpreting the Equal Protection Clause because it “unconstitutionally alters Michigan’s political structure by impermissibly burdening racial minorities.”

As this blog reported, the en banc Court accepted review of the panel decision and, in November 2012, affirmed the ruling. By an 8 to 7 vote (with Judges Kethledge and McKeague recusing themselves), the Sixth Circuit ruled that Proposal 2 violates the “political structure doctrine” of the Fourteen Amendment.  This blog observed at the time that the en banc ruling may “offer the Supreme Court an opportunity to revisit a doctrine not at issue in [the Supreme Court's current affirmative action case, Fisher v. University of Texas at Austin (No. 11-345)] and which the High Court has not addressed for 30 years.”  It appears that the Supreme Court is going to take up that offer in Schuette v. Coalition to Defend Affirmative Action (No. 12-682), and the Sixth Circuit Appellate Blog will keep a keen eye on developments before the High Court.